A Discussion Site for Good Governance and Corruption in Public Life Issues in the British Overseas Territory of Anguilla in the West Indies, moderated by Don Mitchell CBE QC, of PO Box 83, Anguilla, British West Indies. Email me with your comments and contributions at: idmitch@anguillanet.com.

03 March, 2008

Governor Legislating

The Power of the Governor to Unilaterally Make Laws for Anguilla. There are four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla. Not that I am suggesting that we in Anguilla want any such thing to be done to us. Nor am I suggesting that the FCO has any desire of its own to legislate for a British Overseas Territory such as Anguilla! Life is a lot easier for everybody when the Territory legislates properly for itself.

From the date of the 1999 Partnership for Progress and Prosperity Report, the UK government has expressed a desire for more participation, transparency and openness in its government of the BOTs. Not to forget that, ever since the 1948 Universal Declaration of Human Rights, we in Anguilla have enjoyed a right to self-determination. The FCO legislating for Anguilla without our consent could be, theoretically at least, a denial of this right of self-determination. It also diminishes our right to our own internal self-government. Legislation for Anguilla created otherwise than through the Anguilla House of Assembly is a process generally to be condemned when it occurs. However, in our Constitution, there remain several questionable provisions that appear to enable the FCO to legislate for us, even without our consent and against our will.

Let us remind ourselves, first, that the general proposition is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 says,

“Subject to the provisions of this Constitution, the Governor, with the advice and consent of the Assembly, may make laws for the peace, order and good government of Anguilla.”

That is the section of the Constitution that empowers the House of Assembly to pass a law for Anguilla. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent” to it. We may describe this as the “normal” way that laws are made. However, it is not the only way. The FCO has reserved four other ways to make laws for us. They may be shortly described as, (1) the section 56 power; (2) the section 59 power; (3) an Act of Parliament; and (4) an Order in Council. Let us look at each of them in turn.

The first power that enables the FCO to legislate for us is found in section 56 of the Constitution. This says that,

“If the Governor considers that it is expedient in the interests of public order or public faith (which expressions shall, without prejudice to their generality, include the responsibility of Anguilla as a territory within the Commonwealth . . . that any Bill introduced . . . in the Assembly should have effect, then, if the Assembly fail to pass the Bill . . . the Governor, acting in his discretion, may, at any time that he thinks fit, . . . declare that the Bill . . shall have effect as if it had been passed . . . by the Assembly . . .”

This means that the Governor, i.e., the FCO of which he is an official, may sign into law any provision that the FCO considers is necessary in the interests of public order in Anguilla. First, the provision must have been introduced into the Assembly as a Bill. Of course, the Speaker of the Assembly has the final say on what is or is not included on the Order Paper. The Speaker may, on the advice of the Chief Minister, refuse to allow the introduction by, say, the Deputy Governor or the Attorney-General, of a politically sensitive or objectionable Bill into the Assembly. If that were to happen, the Governor would not be able to impose the proposed law on Anguilla, as it had not first been introduced into the Assembly. The section 56 power would be ineffective. Not that it has proven to be a problem. This section 56 power has never in the history of Anguilla been used.

Persons addressing the Constitutional and Electoral Reform Commission during the 2006 constitutional review went so far as to suggest that the section is a dead letter. The general view was that it was inconceivable that, in the 21st Century, the people of Anguilla would willingly accept an enactment made into law by the Governor using this provision contrary to their wishes. The outrage such a use of the section 56 power would engender would inevitably give rise to civil strife. Every Anguillian who had an opinion on the subject urged the Commission to recommend that the section be repealed. The Commission did so at paragraph 130 of its 2006 Report in these words,

“The Commission recommends that the section be repealed in its entirety”.

Most Anguillians would be appalled to discover that there are persons in authority who do not believe that we are already a fully internally self-governing country. We are not dependent on anyone. Full internal self-government is a state of mind. It is not something that you beg someone to give you. It is something you take when you are ready for it. Once we accept that we are already fully internally self-governing, this section 56 provision can never again be used without our consent. It is clearly inappropriate for this constitutional provision to continue in the Constitution of a fully internally self-governing territory. Even today, whether or not it continues as a matter of form to be written in the Constitution, Anguillians cannot concieve of it being used against our wishes.

Not without a great deal of risk to the persons who might be so misguided as to do so!